On Jan. 6, 2021, the U.S. Capitol was stormed in a manner not seen since the War of 1812. To many, the ease of the assault was shocking, highlighting differences in how law enforcement has approached other protests. Faculty from Arizona State University’s School of Criminology and Criminal Justice are helping to answer some of the questions that Americans understandably have about the incident. Interviews with individual faculty members can be arranged by contacting ASU media relations officers Mark Scarp, [email protected], or Nikai Salcido, [email protected]

1. How were protestors able to invade one of the most fortified buildings in the country?

We don’t have the complete answer yet: it will require an in-depth review into what measures were in place to prevent what occurred, what information was available to inform preparations, what orders were given as to how any protests or disruptions should be handled and who made what decisions. The involvement of overlapping agencies further complicates the assessment. To fully analyze the situation – and to prevent future calamities – it is essential that officials perform a so-called sentinel-event review, which is an all-stakeholders exercise akin to investigations conducted by the National Transportation Safety Board. From initial impressions of the televised footage of the storming of the U.S. Capitol, it appears to have been much too easy for the crowd to overwhelm the security presence.

2. Why did police not respond more assertively?

Without all evidence at hand, it does appear from televised and cell-phone camera footage that the crowd was too large for the U.S. Capitol police officers to stop with mere physical force. The apparent decision to wait for police and National Guard reinforcements before responding with greater force to remove the crowd from the Capitol grounds was not unusual given the circumstances. Asking an understaffed group of police officers to try to remove a large crowd would likely have required them to escalate to more serious, perhaps lethal, weapons to do so, actions that likely would have led to even more injuries and deaths than did occur and that likely would have provoked an even more violent reaction from the crowd.

3. Why were so few people arrested?

Early reporting suggests that approximately 50 people were arrested, but the precise number must still be tallied and verified. As a general principle of policing crowds, police try to minimize the number of custodial arrests made during the event because making those arrests during the event risks further antagonizing the larger crowd and increasing the chances of violence, and taking the arresting officers away from the event to process the arrests. But just because custodial arrests were not made during the event does not mean that more people won’t be arrested later when video evidence is reviewed and law violators are identified.

4. Will arrests and prosecutions eventually happen?

This remains to be seen. Investigators will review camera footage and scour social media posts to identify instigators and perpetrators. Cases are then turned over to prosecutors, who have near-total discretion to decide whether to prosecute when they have legal grounds to do so. Prosecutors typically look to the strength of evidence, including but not limited to the defendants’ confessions, the testimony of witnesses at the scene and security camera footage, when deciding on charges. This evaluation process can take several weeks to a few months.

Because this event occurred at the Capitol, federal prosecutors will be making these decisions. Whether the decisions will be made by professional career prosecutors or by politically appointed superiors also remains to be seen. If political judgments enter into prosecution decisions, even if the current administration seeks not to prosecute, the new administration will have time to reverse that decision.

Ultimately, most criminal cases in the United States are resolved by plea bargaining. What happens next and the timeline will largely depend on whether the prosecutor offers pleas, and whether the defendants take them. If the defendants plead guilty, then the cases will conclude relatively quickly. If they do not, then the full trial proceedings will be lengthy and can take multiple months or a few years. The COVID-19 pandemic is still affecting the daily operation of courts and prosecutors’ offices nationwide. Although case proceedings through video conferencing are already taking place in many locations, there may still be another layer of delays over and above the already time-consuming process.

5. I saw police taking selfies with the protestors. Does this mean they supported the protestors?

Not necessarily. But, those searing images are deeply disheartening and undermine law enforcement’s legitimacy. Youth perceptions of police have reached a decade-long low, with children’s perceptions of police declining as soon as age 7 or 9. Against that backdrop, it is alarming to see officers willingly pose for selfies with the very people who were actively committing federal offenses and storming past their barricades to occupy the nation’s Capitol buildings. Those images will have lasting consequences.

This past summer, Congress released a threat assessment report the FBI prepared in 2006 that warned that White supremacists had infiltrated law enforcement. Were there such people on duty in the Capitol Police force? It is difficult, if not impossible, to know. But law enforcement organizations at every level can do more to change their hiring practices, teach their officers about constitutional law, and overhaul their systems of police accountability.

6. How do we square footage of this event with protests involving Black Lives Matter, in which police responded more aggressively to protestors of color?

The contrast between June of 2020 – when law enforcement violently broke up a peaceful protest for Black Lives Matter outside the White House – and January 2021, when armed extremists were permitted entry into the Capitol, unfortunately highlights the issue in black and white. The painful reality of the U.S. justice system is that people of color fare worse than White people.

Some U.S. police agencies were explicitly established in the Civil War era to help preserve slavery and white supremacy. And other early police agencies and other parts of the criminal justice system were created to control social and political unrest among the disadvantaged classes. Modern police and criminal justice agencies inherited this legacy and must work purposefully to transform their role from one of maintaining unequal social order to one of helping to establish a more equal, just and safe social order.

In the United States, there is no national policy or procedure for how police handle crowds, protests and riots, leaving wide variation among the many police agencies. The events at the Capitol should reexamine the critical discussion about the parameters of policing protest – what is the appropriate balance between guarding protestors’ First Amendment rights and ensuring order and protecting property?

But, there should be no debate that police handle all crowds on equal terms and that peaceful protest be defended. Police agencies that fail to provide such treatment fail in their constitutional obligations.